IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20190011298 APPLICANT’S REQUEST: reconsideration of his previous request to correct his DD Form 214 (Report of Separation from Active Duty), ending 11 April 1975, by changing the authority and reason for separation to reflect a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Request for reconsideration * Exhibit 1 – Letter of support from applicant’s mother, dated 4 February 1989 and a letter of support from dated 2 February 1989 * Exhibit 2 – U.S. Army Military District of Washington Special Orders Number 131, dated 8 July 1974 * Exhibit 3 – EPEEC Form 10 (MOS (military occupational specialty) Evaluation Data Report), dated 12 August 1970 * Exhibits 4 through 6 – USAEEC Forms 10 (Enlisted Evaluation Data Report), respectively dated May 1972, August 1972, May 1973, and May 1974 * Exhibit 7 – DA Form 2166-4 (Enlisted Evaluation Report (EER)) for a rating period in 1974 * Exhibit 8 – Discharge or Death Summary for a hospitalization from 21 July until 28 November 1977; Standard Form (SF) 501 (Diagnostic Summary) for hospitalization from 21 July until 28 November 1975; Unidentified form, dated 5 February 1976, with applicant’s treatment and doctor’s comments * Exhibit 9 – MDW Form 32-R (Reenlistment Counseling Statement), dated 26 March 1974 * Exhibit 10 – DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 11 April 1975 * Exhibit 11 – SF 513 (Clinical Record – Consultation Sheet), dated 1 October 1973 FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC92-06705, on 22 July 1992, and AR20170014143, on 24 April 2019. 2. The applicant states he is providing reasons, listed below, that will substantiate new evidence the Board failed to address or follow Army procedures. The applicant contends, “Your decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in conformance with law,’” and, further, the Board’s decision lacked a rational basis or was taken “without consideration and in disregard of the facts and circumstances of the case and mandatory procedure.” a. The applicant cites a 16 September 2014 directive, titled, “Supplemental Guidance to Military Boards for Correction of Military /Naval Records Considering Discharge Upgrade Requests By Veterans Claiming Post Traumatic Stress Disorder.” This document required liberal consideration to be given to petitions for a change “in the characterization of service to Service treatment record entries which document one or more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions.” In addition, liberal consideration was required when finding PTSD existed at the time of service. b. The applicant argues the ABCMR did not follow guidance issued under the “Hagel, Carson, and Kurta Memos’ ‘Liberal Consideration’ rule.” In addition, the ABCMR failed to give special consideration to the Department of Veterans Affairs (VA) diagnosis of service-connected PTSD. The applicant quotes paragraph 5 of the attachment to the “Kurta Memo,” where it states that liberal consideration will be given when a petition is based on such evidence as the following: changes in behavior, requests for transfer to a different military assignment, and deterioration in work performance. He then points to the exhibits he has provided the Board, contending they offer proof he met the criteria laid out in paragraph 5: c. The applicant’s “exhibit 1” consists of statements from the applicant’s mother and his parent’s landlords/neighbors. Consistent with the “changes in behavior” criteria in the “Kurta Memo,” the applicant maintains both statements show his behavior was altered following his combat service in Vietnam. d. The applicant’s mother describes her son as a former Navy man, and she affirms she was, when she wrote the statement, visiting the applicant and reviewing papers he had received from the Navy’s BCMR. She declared she was certain the findings of the Navy’s physical evaluation board were inaccurate. It was true that her son came back a different person when he returned from Vietnam; he was rude, angry, and wanted to be alone. In addition, the applicant could not stand any noises, and he was nervous, jumpy, alert, and very, very defensive; he sometimes acted like he was in another world and did not know his family, not even his mother. The applicant would become hostile and acted strangely, and the applicant’s mother often wondered what the military had done to him; she felt afraid for her son because he was far from her reach and love. As to the suggestion her son had problems while he was still in school, this was not true; the applicant had no issues and was a loner because he chose to be alone. He also had no mental or physical conditions and did not have frequent doctor visits; he was a good boy who loved his mother. e. retired railroad workers and landlords for the applicant’s parents, stated they had known the applicant since he was a boy; he and his parents lived in their house right next door. They never knew the applicant to be sick; he was “always up and going; to me he seemed very healthy in his younger life. As far as being mentally ill or taking medicine for any illness, as far as I know, that’s not correct.” They also acknowledged knowing the applicant’s father, who had served in World War II and was a prisoner of war; they never witnessed any child abuse perpetrated by either of the applicant’s parents. From their observation, the applicant stayed to himself when he was younger because he did not do things the crowd was doing, like smoking, gambling, or drinking. Instead, he liked to attend church and play his guitar. f. Exhibit 2 is a reassignment order, which indicates the applicant’s leadership moved him to an Army unit in for “rehabilitative purposes.” The applicant maintains the order fits the language in paragraph 5, where it states that evidence of mental health conditions can be shown by requests for transfer to another military duty assignment. g. Exhibits 3 through 6 reflect the results of MOS testing between May 1970 and May 1974; exhibit 7 is an EER, for a rating period in 1974, but most of the form is illegible. The applicant contends the results displayed in these documents show a deterioration in work performance. (1) MOS Testing Results: * May 1970, MOS 94B (Cook) – scored “High” in meat identification, cutting, and cookery, as well as baking, but low to very low in all remaining areas * May 1972, again for MOS 94B – scored average in four out of seven areas, and low or very low on the rest * August 1972, MOS 62G (Quarryman, an MOS initially held by the applicant) – low in all evaluated areas * May 1973, MOS 94B – of five evaluated areas, average in two, low in two, and very low in the last * May 1974, MOS 94B – low in three areas, very low in three areas (2) DA Form 2166-4 (EER) for a rating period ending in 1974. The Dining Facility Manager (Sergeant First Class (SFC) acknowledges the applicant has the ability, but his personal attitude and inability to get along with others “has outwardly influenced his performance. This attitude has required constant supervision to overcome.” The form shows SFC signed the EER, on “9/7/74,” and the reviewer signed, on 10 July 1974. h. Exhibit 8 consists of documents showing hospitalizations and a diagnosis of latent schizophrenia; one document lists a hospitalization occurring in 1975, the other shows a period in 1977. The applicant points out that, “some 2 months after discharge from the Army, another suicide attack, which led to a diagnosis of ‘latent schizophrenia…”; (the applicant separated from the Army in April 1975). i. Exhibit 9 is a Reenlistment Counseling Statement, signed by a commissioned officer. The statement shows the applicant had received overseas assignment instructions but refused to extend his enlistment to satisfy length of remaining service requirements; the counseling statement advised the applicant his actions made him ineligible for reenlistment and promotion. The applicant argues this document is further proof the Army knew something was wrong with him. j. Exhibit 10 is an incomplete but signed DA Form 1811 (Physical and Mental Status on Release from Active Service); the applicant notes that, under Mental Status, the form does not show a score for his “AFQT” (Armed Forces Qualification Test; used by the military to determine enlistment eligibility); the form only states, “DNA.” The applicant maintains this entry violates law and Department of Defense (DOD) regulations; specifically, Title 10 (Armed Forces), United States Code (USC), Section 520 (Limitation on Enlistment and Induction of Person whose Score on the AFQT is Below a Prescribed Level; sets limits on the acceptance of enlistees who score below certain AFQT percentiles within any given fiscal year) and “DOD 1332.18 section 10-6 Re-entry or active duty or FTNGD.” (DOD Manuals 1332.18 (three volumes) and DOD Instruction 1332.18 pertain to the Disability Evaluation System and none include a “section 10-6”). k. The applicant cites paragraph 7 from the “Kurta Memo” attachment: “The veteran's testimony alone, oral or written, may establish the existence of a condition, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge.” The applicant then points out that the 2020 version of Title 10, USC, Section 1552 (Correction of Military Records: Claims Incident Thereto) includes a provision requiring any medical advisory issued concerning an applicant diagnosed with a mental health disorder while serving in the Armed Forces must include the opinion of a clinical psychologist or psychiatrist. l. The applicant states, “see DD 214 reason for discharge, Chap 2 (Separation of Enlisted Personnel), AR (Army Regulation) 635-200 (Personnel Separations – Enlisted Personnel), SPD (separation program designator) ‘JBK’ (Completion of Required Service (ETS, expiration term of service)), personnel separation, diagnosis of personality disorder with an antisocial behavior and impulsiveness. Where is the medical report for this diagnosis for which I was separated?” m. The applicant contends that the absence of a medical report supporting personality disorder as the basis for his separation violates DOD regulations, and he notes, “The AR does not show that the claimant (applicant) experienced bizarre behavior while stationed at Fort Eustis, VA, in November of 1970, for which he was slightly injured in the matter. He was taking (sic) in custody by the base MPs (military police) and the company commander sent the claimant on leave for 14 days with no evaluation or follow up. Again, this shows a violation of DOD regulations 1332.18 and seemingly was the onset of PTSD, etc., in the 1970s.” n. The applicant’s exhibit 11 is an SF 513 (Clinical Record – Consultation Sheet), which shows the medical clinic at Fort Myer, VA referred the applicant to Walter Reed Army Medical Center (WRAMC) for a psychological evaluation. (1) The exhibit states the applicant came to the clinic stating he had taken twenty 50 milligram Benadryl capsules, and, when the medical staff attempted to pump his stomach, the applicant became combative and had to be restrained. (2) The applicant maintains his records are void of any psychological evaluation that was conducted, and he asserts this is a further violation of DOD 1332.18. He declares, “The record substantiates that, starting somewhere in the late 1970s, the claimant has had a disability or ongoing symptoms of a disability that has not been diagnosed or treated...the Army simply eliminated him from the Army honorably without the benefit of DOD and Army regulations for the completion of his term of enlistment with a discharge of CHAP 2, AR 635-200.” 3. A review of the applicant’s service record shows: a. On 13 February 1968, the applicant enlisted into the Regular Army for 3 years; he was 19 years old. The applicant’s DA Form 20 (Enlisted Qualification Record) indicates the following in item 25 (Other Tests):” MDB-I – “84”; OCT – blank, no score; ALAT – blank, no score; AFQT – “21.” No other test scores were reflected. b. Upon completion of initial entry training and the award of MOS 62G (Quarry Machine Operator), orders transferred the applicant to Vietnam, and he arrived in Vietnam, on 4 July 1968. Orders subsequently further assigned him to the 92nd Engineer Battalion. c. On 12 April 1969, the Army honorably discharged the applicant so he could immediately reenlist. The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 2 months of his 3-year enlistment contract; item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) listed the Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the National Defense Service Medal. On 13 April 1969, the applicant immediately reenlisted for 6 years. d. 92nd Engineer Battalion Special Orders (SO), dated 15 May 1969, announced the applicant’s MOS change from 62G to 94B (Cook). Effective 24 August 1969, the applicant’s chain of command promoted him to specialist five (SP5)/E-5. General Orders (GO) awarded the applicant the Army Commendation Medal for meritorious service, during the period July 1968 to December 1969. e. On 3 January 1970, the applicant completed his tour in Vietnam, and orders reassigned him to Fort Eustis; he arrived at his unit, on 9 January 1970. In or around January 1971, orders transferred the applicant to Vietnam, and he arrived at the 69th Engineer Battalion, on 9 April 1971. On 12 April 1971, GO awarded the applicant the Army Good Conduct Medal (1st Award). f. Around the end of August 1971, the applicant received a regular EER (DA Form 2166-4) for the rating period April to August 1971. The applicant’s rater (Staff Sergeant (SSG) gave the applicant three “O” (outstanding) and three “E” (excellent) ratings; (available ratings were: “O” (outstanding); “E” (excellent); “AA” (above average); “A” (average); “BA” (below average); and “U” (unsatisfactory). SSG stated the applicant was conscientious, industrious, and extremely capable in the performance of his First Cook duties. g. On 10 November 1971, the applicant moved to the 554th Engineer Battalion. On 31 January 1972, the applicant transferred from Vietnam to Fort Myer, VA, and he arrived at his new unit, on 10 March 1972. In August 1972, the applicant’s supervisor (SFC completed a DA Form 2166-4 for the rating period September 1971 through February 1972; SFC rated the applicant as “Outstanding” for adaptability, initiative, and responsibility; “Excellent” for leadership and duty performance; and “Above Average” for attitude. SFC cited the applicant as a credit to himself, his company, and the U.S. Army. h. In November 1972, SFC Mess Steward, rendered the applicant’s EER for the rating period March through November 1972; SFC gave the applicant “Excellent” ratings for all evaluated areas; he did not include any comments. i. On 1 October 1973, the applicant sought treatment at his supporting medical clinic at Fort Myer for having ingested twenty Benadryl capsules; the medical staff treated the applicant and referred him for a psychological evaluation at WRAMC, but the applicant’s service record does not include the evaluation’s results. In December 1973, the applicant’s rater (SFC Mess Steward) completed the applicant’s EER for the rating period December 1972 through November 1973; SFC rated the applicant as “Above Average” for his attitude and duty performance, and “Average” for adaptability, initiative, leadership, and responsibility. SFC comments noted that the applicant possessed a “large amount of professional knowledge,” but that “recent personal problems have resulted in occasionally erratic performance, for which he has sought professional assistance.” j. In or around January 1974, the applicant received overseas reassignment instructions; on 26 March 1974, Captain (CPT) completed an MDW Form 32-R (Reenlistment Counseling Statement), in which he affirmed he had counseled the applicant that, per AR 601-280, the applicant was required to extend his enlistment to satisfy length of service requirements; however, the applicant had refused. Based on his refusal, the applicant became ineligible for reenlistment for a period of 93 days after discharge. k. U.S. Army Military District of Washington SO, dated 8 July 1974, reassigned the applicant, for rehabilitative purposes, to a Student Company at Suitland Station, Washington, D.C.; he arrived at his new duty station, on 10 July 1974. In or around July 1974, the applicant’s former supervisor at Fort Myer (SFC Dining Facility Manager) completed an EER, pertaining to the applicant, for the rating period December 1973 through July 1974. SFC rated the applicant below average in adaptability, attitude, leadership, responsibility, and duty performance; for initiative, SFC reflected the applicant as average. l. In November 1974, the applicant’s supervisor (SFC prepared the applicant’s EER for the rating period August through November 1974; he rated the applicant as “Outstanding” in all evaluated areas. SFC lauded the applicant’s “sense of responsibility, professional skill, and dedication to his work,” and particularly noted the applicant’s “high degree of common sense.” On 5 March 1975, GO awarded the applicant the Army Good Conduct Medal (2nd Award). m. In or around March 1975, the applicant underwent a separation physical. On his SF 93 (Report of Medical History), the applicant left blank entries pertaining to attempted suicide and answered, “No” to questions about depression, excessive worry, or nervous trouble. On the applicant’s SF 88 (Report of Medical Examination), the physician reflected “Normal” for item 42 (Psychiatric) and affirmed the applicant was medically qualified for separation. n. In April 1975, SFC Dining Facility Manager and the applicant’s rater, completed the applicant’s EER for the rating period December 1974 through April 1975. SFC assessed the applicant as “Outstanding” in all rated areas, and stated the applicant had “demonstrated repeatedly an unusually high degree of initiative, sense of responsibility, professional skill, and dedication in carring (sic) out his responsibilities.” o. On 11 April 1975, as part of the applicant’s out-processing, CPT completed a DA Form 1811 pertaining to the applicant. (1) Under “Mental Status – Enlistment or Reenlistment without Mental Retest is Authorized Provided Enlistment or Reenlistment is Accomplished within One Year after Date of Separation,” the form shows the following: * applicant’s Armed Forces Vocational Aptitude Battery (ASVAB) scores are listed, but “DNA” is handwritten next to “AFQT – SCORE IS 31 OR ABOVE, YES__ NO__” * “DNA” is also written next to four tests under the heading, “OTHER TEST SCORES RECORDED IN ITEM 25, DA FORM 20”: OCT, ALAT-1, ARC- 1, and ACS (2) All entries under the heading, “Physical Status” are blank. p. On 11 April 1975, orders honorably discharged the applicant. His DD Form 214 (Report of Separation from Active Duty) indicates he completed 5 years, 11 months, and 29 days of net active duty service. (1) Item 9c (Authority and Reason): “CHAP 2, AR 635-200 SPD JBK.” (2) Item 9e (Character of Service): “HONORABLE” (3) Item 10 (Reenlistment Code): “RE-1A” (Fully qualified for immediate reenlistment; however, ineligible to reenlist for 93 days after date of separation). (4) Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized): * National Defense Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Four overseas service bars * Army Good Conduct Medal (2nd Award) * Vietnam Service Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Army Commendation Medal * Two marksmanship qualification badges q. Following service in the District of Columbia Army National Guard and the U.S. Navy, the applicant petitioned the ABCMR, on 22 October 1991, requesting the Board show he separated by reason of physical disability, and his disability (PTSD) received a rating of 100 percent. (1) The applicant argued the Army failed to properly diagnose his PTSD condition while he was still on active duty. Subsequently, VA gave him a diagnosis of latent schizophrenia and granted him service-connection for a nervous condition; however, the applicant maintained his condition was "latent incurred in the (Army) from Vietnam service” and later, when he joined the Navy, he carried this latent condition with him. (2) On 10 July 1992, the Office of the Surgeon General (OTSG) provided an advisory opinion. The OTSG opined that there was no clinical evidence of PTSD and, in a 1982 psychiatric evaluation, the examining physician had stated, “The Soldier did not describe any particular traumatic combat experiences.” OTSG added that, based on a review of the applicant’s service treatment records, they found sufficient support of a diagnosis of “personality disorder with a antisocial behavior and impulsiveness.” (3) On 22 July 1992, the Board reviewed the applicant’s request, evidence, and service record and voted to deny relief. (a) In its Memorandum of Consideration, the Board noted that VA had issued a rating decision, on 8 March 1991, in which it awarded the applicant a 30 percent disability rating for paranoid schizophrenia but had denied service connection of PTSD. The Board added that PTSD had been described in the revised third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), and the U.S. Army Physical Disability Agency had stated PTSD had only recently been categorized by psychiatrists as a distinct diagnosis. (b) AR 40-501 (Standards of Medical Fitness), as amended, stated, “for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.” AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided that “the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, grade, rank, or rating.” (c) Based on the foregoing, the Board denied the applicant’s request, concluding the applicant’s separation, after he had refused to extend his enlistment, was proper. In addition, the Board found no medical evidence to show the applicant suffered from any condition that made him unable to perform the duties of his office, grade, rank, or rating; furthermore, the applicant’s contention his PTSD had been “latent” only further supported the Board’s finding that he was able to perform his duties. r. On 19 May 2017, the applicant, in effect, requested reconsideration of his previous request, stating he sought an upgrade of his honorable character of service to a medical discharge with a 50 percent disability rating for the period 11 April 1975 to 14 May 1976. s. In support of his request, the applicant provided a completed VA “Initial PTSD Disability Benefits Questionnaire (DBQ),” dated 10 December 2014; (the VA developed DBQs as a resource for collecting the necessary medical information it needed to process disability claims). The DBQ, signed by LP Psychology, Behavioral Health”), lists “Current Diagnoses: Diagnosis #1: PTSD. Diagnosis #2: Schizophrenia (in remission).” t. On 21 June 2018, the Army Review Boards Agency (ARBA) Medical Advisor provided an advisory opinion. (1) The ARBA Medical Advisor provided the Board a comprehensive review of the applicant’s military and medical history; based on a limited view of the applicant’s VA medical records, via the Joint Legacy Viewer, the ARBA Medical Advisor noted the applicant showed no service-connected granted for PTSD. (2) Based on the foregoing review, the ARBA Medical Advisor concluded the available record did not reasonably support the presence of PTSD or other behavioral health condition that would have warranted referral into the Army’s Disability Evaluation System, and, between 1968 and 1975, the applicant met the medical retention standards, outlined in AR 40-501. “There was/is NO basis for a PTSD or schizophrenia diagnosis during the applicant’s active military service in the Army, from 1968 thru 1975.” u. On 7 July 2018, the applicant submitted his rebuttal to the medical advisory. (1) He declared, “It is often hard to explain one's self about a condition you don't know about or an ailment that you have when the government is trying so hard to doubt even if you have what you say,” and he continued by providing examples of behaviors he asserted were indicative of PTSD. (2) He contended he had started having problems while assigned to Fort Eustis and continued with his suicide attempt in October 1973 and his hospitalization 3 months after his Army discharge. He additionally argued the medical advisory’s assertion that he had not received a service-connection for his PTSD was wrong; he submitted a VA “Special Psychiatric Examination,” dated 22 January 1982, which revealed the VA had diagnosed him with “depressive neurosis and PTSD, characterized by depression and antisocial behavior.” (3) He pointed out that, according to a Secretary of Defense’s memorandum, the Board was “empowered to implement liberal consideration of evidence of PTSD symptom in the service record or in a diagnosis provided by civilian providers.” He concluded, “Although the Veteran claimant received (an) honorable discharge, that honorable discharge mandated a medical discharge with a 50 percent rating with retroactive pay.” (4) On 24 April 2019, the Board considered the applicant’s application and all supporting documents and determined relief was not warranted. “Based upon both medical advisories from 1992 and 2018, determining no evidence of a medical disability or condition which would support a change to the character or reason for the discharge, the Board concluded that there was insufficient evidence to change the reason for separation or the disability rating of the applicant.” 4. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. During the applicant’s era of service, and according to chapter 4 (Actions Authorized to Meet Length of Service Requirements), AR 601-280 (Army Reenlistment Program), in effect at the time, Soldiers who refused to extend their enlistments to meet length of service requirements were barred from reenlistment for a period of 93 days following their separation date. b. Chapter 2, AR 635-200 required individuals who had enlisted into the Regular Army to be discharged at the completion of their enlistment contract. c. Concerning the DA Form 1811 (Physical and Mental Status on Release from Active Service) (1) Per AR 635-5 (Separation Documents), in effect at the time, the DA Form 1811 was intended to permit qualified individual to reenlist without having to retake mental or medical examinations. The regulation required the form’s issuance to Soldiers who received a reenlistment code of RE-1A and would not be immediately reenlisting upon separation. (2) AR 601-280 stated, for immediately reenlisting Soldiers, the AFQT score was not required. According to AR 601-210 (Regular Army Enlistment Program), in effect at the time, prospective prior service enlistees with DA Forms 1811 did not have to retake required entrance tests, provided enlistment occurred within one year of separation date. d. AR 40-501, in effect at the time, identified medical conditions and/or physical defects that could cause Soldiers to be medically unfit; medical authority referred Soldiers believed to meet the regulation’s criteria to a medical evaluation board (MEB) to determine if the Soldier failed medical retention standards. Soldiers failing medical retention standards were referred to a physical evaluation board (PEB) for a fitness determination. e. AR 635-40, in effect at the time, provided for the retention, retirement, or separation of Soldiers following a fitness determination by a PEB. The regulation stated, in chapter 2 (Policies), the mere presence of an impairment does not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to correlate the nature and degree of physical disability present with the duty requirements the Soldier could be reasonably expected to perform, by virtue of his/her office, grade, rank, or rating. 5. With regard to DOD guidance to BCM/NRs: a. On 3?September 2014, the Secretary of Defense (Secretary Hagel) directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. b. On 24 February 2016, Acting Principal Deputy Under Secretary of Defense (the honorable Brad Carson) issued a memorandum affirming Secretary Hagel’s guidance and directed, “BCMRs/BCNR will waive, if it is applicable and bars consideration of cases, the imposition of the statute of limitation. Fairness and equity demand, in cases of such magnitude, that a Veteran's petition receives full and fair review, even if brought outside of the time limit.” “Similarly, cases considered previously, either by Discharge Review Boards, or by BCMRs or the BCNR, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance.” c. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance (referred to as the “Kurta Memo”). This memorandum addresses the Secretary of Defense Directive to DRBs and BCM/NRs and states that, when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment, Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting a reconsideration of his previous request to correct his DD Form 214 (Report of Separation from Active Duty), ending 11 April 1975, by changing the authority and reason for separation to reflect a medical retirement. The applicant contends the ABCMR failed to give special consideration to the Department of Veterans Affairs (VA) diagnosis of service-connected PTSD, during its previous consideration. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant joined the Regular Army on 13 February 1968; 2) He applicant served two tours in Vietnam; 3) The applicant was honorably discharged on 11 April 1975. b. Military medical documentation reviewed includes: 1) DA Form 1811 (Physical and Mental Status on Release from Actie Service) dated 11 April 1975 which stated the applicant is qualified for separation or reenlistment without re-examination; 2) Standard Form 93 (Report of Medical History) dated 24 March 1974 and 24 March 1974, both showing normal findings. c. A review of the VA medical record, JLV, show the applicant is 100-percent service-connected for Schizophrenia, paranoid type; current effective date NOV 13,1990. There are minimal BH treatment records found for the applicant in JLV and none supporting the applicant’s contention of a service-connected PTSD diagnosis by a VA provider. Neither did the applicant provide evidence of a PTSD diagnosis from a civilian provider. A review of the ROP, shows that on 1 October 1973 the applicant sought treatment at his supporting medical clinic on Fort Meyers after ingesting 20 Benadryl capsules. The medical staff treated him and referred him to WRAMC for a psychological evaluation. The applicant’s service record does not include the evaluation report. The ROP also shows the applicant was reassigned to a Student Company at Suitland Station, Washington DC on 10 July 1974 for “rehabilitative purpose”. Records are void of documentation outlining the reason for rehabilitative transfer. Medical documentation provided by the applicant shows that he was psychiatrically hospitalized 21 July 1975 through 28 November 1975 (2.5 months post- service) and diagnosed with Latent Schizophrenia. Given the etiology of schizophrenia and the fact the applicant was hospitalized and diagnosed shortly after his ETS, it is possible he experienced prodromal symptoms while on active duty. His suicide attempt, erratic behavior noticed by his NCO, and the need for a transfer for rehabilitative purpose, could all be indicative of prodromal symptoms. d. Based on the available information, it is the opinion of the Agency BH Advisor the applicant may have experienced prodromal symptoms of Schizophrenia while on active duty, and in an abundance of caution recommend the case be referred to IDES. e. There is no evidence supportive of a PTSD diagnosis during his time in service. f. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) N/A. The case is not one of misconduct, rather a request for a medical retirement determination. Given that fact the applicant was hospitalized and diagnosed with schizophrenia 2.5-months post service, and the etiology of the disorder, it is possible he experienced prodromal symptoms while on active duty. His suicide attempt, erratic behavior noticed by his NCO, and the need for a transfer for rehabilitative purpose, could all be indicative of prodromal symptoms. As such, out of an abundance of caution, it is recommended the case be forwarded to IDES. (b) There is no evidence to support the applicant had PTSD during his time in service. (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined partial relief was warranted. One potential outcome discussed was to deny relief based upon the findings of the medical advisor. However, based upon the available documentation and the recommendation of the medical advisor, the Board recommended forwarding the applicant’s record to the IDES for further evaluation to determine whether a change in the narrative reason for separation was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for separation. 3. Prior to closing the case, the Board did note the administrative notes below and recommended those changes be completed to more accurately reflect the military service of the applicant. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): 1. AR 635-5, in effect at the time, required the DD Form 214 to list all awards and decorations. 2. AR 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States based on their qualifying service in Vietnam after 3 July 1965 through 28 March 1973. A bronze service star will be awarded for wear on the Vietnam Service Medal for the Soldier’s participation in each recognized campaign, and a silver service star is worn in place of five bronze service stars. Authorized campaigns include the following: * Counteroffensive, Phase V (1 July 1968 to 1 November 1968) * Counteroffensive, Phase VI (2 November 1968 to 22 February 1969) * Tet 69/Counteroffensive (23 February 1969 to 8 June 1969) * Summer-Fall 1969 (9 June 1969 to 31 October 1969) * Winter-Spring 1970 (1 November 1969 to 30 April 1970) * Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) * Consolidation I (1 July 1971 to 30 November 1971) * Consolidation II (1 December 1971 to 29 March 1972) 3. Department of the Army Pamphlet (DA PAM) 672-3 (Unit Citation and Campaign Participation Credit Register) shows: a. Department of the Army General Order (DAGO) Number 2, dated 1971, awarded the Meritorious Unit Commendation to the 92nd Engineer Battalion for the period 1 January 1968 to 30 June 1969. b. DAGO Number 43, 1970, awarded the Republic of Vietnam Civil Actions Honor Medal, First Class to the 92nd Engineer Battalion, for the period 3 August 1967 to 9 February 1970. 4. The evidence of record shows the applicant served two tours in Vietnam: 19680704 to 19700103 and 19710404 to 19720131. 5. Based on the foregoing, amend the applicant's DD Form 214, ending 11 April 1975, as follows: a. Delete the Vietnam Service Medal b. Add the following: * Vietnam Service Medal with one silver service star and three bronze service stars * Meritorious Unit Commendation * Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation REFERENCES: 1. Title 10, USC, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. AR 601-280 (Army Reenlistment Program), chapter 4 (Actions Authorized to Meet Length of Service Requirements), in effect at the time, required Soldiers who refused to extend their enlistments to meet length of service requirements to be barred from reenlistment for 93 days following separation. In addition, AR 601-280 stated, for immediately reenlisting Soldiers, the AFQT score was not required. 3. AR 601-210 (Regular Army Enlistment Program), in effect at the time, stated prospective prior service enlistees with DA Forms 1811 did not have to retake required entrance tests, provided enlistment occurred within one year of separation date. 4. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 2 of the regulation provided for the separation of Soldiers who had completed their contractual obligation/required term of active service. 5. AR 40-501, in effect at the time, identified medical conditions and/or physical defects that could cause Soldiers to be medically unfit; medical authority referred Soldiers believed to meet the regulation’s criteria to a medical evaluation board (MEB) to determine if the Soldier failed medical retention standards. Soldiers failing medical retention standards were referred to a physical evaluation board (PEB) for a fitness determination. 6. AR 635-40, in effect at the time, provided for the retention, retirement, or separation of Soldiers following a fitness determination by a PEB. The regulation stated, in chapter 2 (Policies), the mere presence of an impairment does not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to correlate the nature and degree of physical disability present with the duty requirements the Soldier could be reasonably expected to perform, by virtue of his/her office, grade, rank, or rating. 7. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 8. On 24 February 2016, Acting Principal Deputy Under Secretary of Defense issued a memorandum affirming Secretary Hagel’s guidance and directed, “BCMRs/BCNR will waive, if it is applicable and bars consideration of cases, the imposition of the statute of limitation. Fairness and equity demand, in cases of such magnitude, that a Veteran's petition receives full and fair review, even if brought outside of the time limit.” “Similarly, cases considered previously, either by Discharge Review Boards, or by BCMRs or the BCNR, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance.” 9. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 10. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011298 1 ABCMR Record of Proceedings AR20190011298 1